Employee Disqualified from Receiving Unemployment Benefits for Failing to Adhere to Employer’s Call Out Procedure

The New Jersey Appellate Division recently affirmed a Board of Review’s decision denying claimant, Mr. John M. Custin, from receiving unemployment benefits, finding that he engaged in misconduct connected with the work. Mr. Custin was found eligible for unemployment benefits in the initial hearing however, his employer appealed. The Appeal Tribunal reversed the initial determination finding Mr. Custin eligible for benefits and found that Mr. Custin was disqualified. The Board of Review affirmed that decision.

In the case, Custin v. Board of Review, Mr. Custin worked for Walmart Stores Inc. (“Walmart”) from April 11, 2008 through April 26, 2010 as a sales associate. Mr. Custin did not report to work on April 17, 19, 21, 22, and 23 because of pain in his legs that rendered him unable to get out of bed. Walmart’s policy required employees to call an employee hotline and get a verification number as proof that the employee followed the correct procedure to call out of work. Mr. Custin asserted that he did call the hotline but was unable to get a verification number because the hotline was not working properly.

Mr. Custin was first found eligible for unemployment benefits on May 13, 2010, however, Walmart appealed that determination. During the appeal hearing, Ms. Beverley Shuck, Mr. Custin’s former manager, testified that Mr. Custin was terminated because he was a “no call, no show,” on April 17, 19, 21, 22, and 23. Ms. Shuck testified that employees were fully aware of the call out procedure. Ms. Shuck also testified that Mr. Custin had called out in the past, using the correct procedure however, when she asked him why he did not call out in this instance, he stated “that his legs hurt and he figured if he couldn’t walk he couldn’t work.” Ms. Shuck further testified that employees who were absent more than three days were required to provide a doctor’s note pursuant to Walmart’s leave of absence policy. Mr. Custin denied being aware of such policy.

Under the American Recovery and Reinvestment Act of 2009, Mr. Custin applied for a COBRA premium reduction following his termination. Initially, Mr. Custin’s request was denied because it was determined that he was not an “Assistance Eligible Individual” because he had purportedly not been involuntarily terminated. This decision was reversed when Walmart submitted a letter stating that following an additional investigation it was determined that Mr. Custin was eligible for the COBRA subsidy. Mr. Custin asserted that Walmart’s position as to his eligibility for the COBRA subsidy contradicted Walmart’s position during the appeal hearing, that he voluntarily abandoned his job. However, the Appeal Tribunal denied Mr. Custin’s request that Walmart’s statement that he voluntarily abandoned his job be stricken.

The Appeal tribunal found that Mr. Custin was disqualified from receiving benefits because he did not properly notify Walmart of his absences which constituted misconduct connected with the work. Mr. Custin appealed the determination of the Appeal Tribunal denying his unemployment benefits arguing Walmart failed to prove his misconduct constituted a wanton or willful disregard of the employer’s interests, a deliberate violation of the employer’s rules, or an intentional and substantial disregard of his duties and obligations. Mr. Custin also argued that he was denied due process of law. The Board of Review affirmed the Appeal Tribunal’s decision and disagreed with Mr. Custin’s arguments.

The Board cited to Demech v. Bd. of Review, 167 N.J. Super. 35, 38 (App. Div. 1979) to support its finding that Mr. Custin’s failure to call out was not inadvertent or unintentional and thus, constituted misconduct connected with the work. Citing Demech, the court stated, acts of willful, deliberate, or intentional misconduct must be distinguished from “[i]nadvertent or unintentional acts, or simple neglectful conduct not amounting to a wanton disregard of consequences….” Demech at 38-89. Mr. Custin was absent from work for five days and presented no credible evidence to refute Ms. Shuck’s testimony that the hotline was not malfunctioning as other employees had successfully called out the same mornings that Mr. Custin complained he could not. The court concluded Mr. Custin failed, without justification, to take steps necessary to notify his employer of his absence and the reason therefor. N.J.A.C. 12:17-10.3.

The Board also disagreed with Mr. Custin’s argument that he was denied due process of law because Walmart failed to provide him copies of his exit interview and attendance record which was referenced by Ms. Shuck in the appeal hearing. The court rejected this argument because Mr. Custin failed to raise the issue before the Appeal Tribunal although he had an opportunity for such presentation.

Lastly, the Court concluded that Mr. Custin’s argument that the only issue that was in dispute was whether he voluntarily left his job and since this was decided in his favor, he should have been qualified for unemployment benefits. The Court rejected this argument stating that Mr. Custin was well aware of Walmart’s position that he had been separated from work for misconduct, the notice he received from unemployment identified the issues were “voluntary leaving” and “discharge for misconduct,” and at the inception of the Appeal Tribunal hearing, the Appeals Examiner informed all parties of the issues.

In rejecting all of Mr. Custin’s asserted arguments and finding that his failure to properly notify his employer of his absence as required by Walmart’s policy, the Appellate Division affirmed the determination disqualifying Mr. Custin for unemployment benefits.

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